Raising a Stink over Toilets: Using RTI for Fixing Accountability in the Nirmal Gujarat Campaign

Raising a Stink over Toilets: Using RTI for Fixing Accountability in the Nirmal Gujarat Campaign

The Problem:
The Government of Gujarat spends several crores every year to improve toilet and sanitation facilities for the poorest families in the State. Under the Nirmal Gujarat Campaign launched in 2007 families below the poverty line (BPL) receive partial financial assistance from the government for constructing modern toilets. They are required to contribute a small amount from their own pocket as well. However the scheme is riddled with corruption and does not always work to the satisfaction of the beneficiaries. In March 2008 some of the beneficiaries of this scheme approached Nagarik Adhikar Kendra (NAK) Kalol, Panchmahals district, complaining that the contractor had collected excess amounts from them but had not done much to build functional toilets.

The 1st RTI Intervention:
NAK decided to file an application under the Right to Information Act to obtain copies of the scheme guidelines and records relating to the construction of toilets in Kalol. NAK drafted an RTI request seeking the following information from the Kalol Nagarpalika (municipal body):

1. Name of the nodal agency/department responsible for ensuring the implementation of Nirmal Gujarat scheme;
2. Name of the department/office responsible for actually implementing the scheme in Kalol;
3. Procedure for selection of the contractor/contracting agency responsible for constructing the toilets;
4. Names of the beneficiaries of this scheme and the places where the toilets were constructed;
5. Name and designation of the officer of Kalol Nagarpalika responsible for supervising the construction of toilets;
6. Copy of the no objection certificate (NOC) issued by the Kalol Nagarpalika which enabled the contracting agency to collect payments; and
7. A copy of the completion report submitted by the Kalol Nagarpalika to the Municipal Finance Board which provides funding for this scheme.

When Mr. Hanifbhai Waghela of NAK visited the Nagarpalika office to submit the application he faced resistance. The public information officer (PIO) demanded to know whether he had sworn to create nuisance for the Nagarpalika (NAK has been actively using RTI to hold public authorities accountable for their actions in Panchmahals since 2005). Hanifbhai said that his intentions were honest and he wanted to know about the manner in which the Nirmal Gujarat scheme was required to be implemented. He told him that as a public servant the PIO was required to receive the information request and make a decision regards disclosure. The PIO then threatened to call the police. Hanifbhai replied that police officers were public servants too and he would not feel threatened by their presence. In the end the PIO had little choice but to accept the application. Not doing so would have attracted a monetary penalty under the RTI Act.

Despite the passage of 30 days NAK did not get the information from the Nagarpalika. An appeal was filed before the Additional District Collector, the designated appellate authority (AA) under the RTI Act. The AA heard the matter and ordered that the information be disclosed within 10 days. Despite this order NAK did not receive any information. NAK filed the second appeal with the State Information Commission (SIC) in June. The matter has not been taken up by the SIC despite the passage of 14 months.

The 2nd RTI Intervention:
After submitting the second appeal to the SIC, NAK sent an RTI application to the Municipal Finance Board based in Gandhinagar seeking the same information about the toilet scheme. This Board is responsible for the disbursal of funds to local agencies working in urban areas. After 29 days NAK received a reply from the PIO of the Board who claimed that the requisite application fee of Rs. 20 (less than 50 US cents) had not been paid. This claim was wrong as NAK had filed an application on non-judicial stamp paper worth Rs. 20 - an approved mode of fee payment in Gujarat . NAK filed the first appeal before the AA of the Board and submitted proof of fee payment. The AA ordered disclosure of all information. NAK received all the records and documents 15 days later.

The verification process:
The records NAK received in August 2008 revealed that the government of Gujarat had appointed Manav Seva Khadi Gramodyog Vikas Sangh (MSKGVS), based in Khedbrahma, as the nodal agency for implementing the Nirmal Gujarat Programme. MSKGVS had subcontracted the task to an NGO named Kastruba Mahila Sayak Grih Udoyg Sahakari Sangh Ltd. based in Balasinore in Nadiad district. Armed with the names of beneficiaries contained in the NOC list, NAK started verifying the true state of affairs and captured some images on film. After an intensive door-to-door survey and NAK came up with astonishing findings:

1. Records showed that 150 toilets were required to be constructed in Kalol during the year 2008-09. The Chief Officer, Kalol Nagarpalika had issued a no objection certificate certifying completion of the work for 111 toilets. Payments had been made to the contracting agency.
2. NAK could not find a single instance where the construction work had been completed. In seven places the work had not even begun. In many places three walls had been constructed without a roof but not pit. Scheme guidelines require that a pit of 10ft x 5ft must be dug before the walls are built. The contracting agency claimed that this was a cost effective way of constructing toilets. However the construction work began in some places soon after NAK started the verification process.
3. 16 beneficiaries did not belong to the BPL category at all.
4. None of the toilets had been connected to a sewer.
5. Some of the beneficiaries claimed that their functional toilets had been demolished by the contracting agency in order to construct a fresh one but the work had not been completed. Some families used the half-built cubicle to store firewood.
6. According to the scheme guidelines each toilet was to be constructed at the cost of Rs. 4900. The beneficiary family was required to raise Rs. 900 while the remaining sum was paid by the government. The verification process showed that 74% beneficiaries had paid Rs.1200 and another 5% had paid Rs. 1000. Only 3% of the beneficiaries had paid 900 - the correct amount. 1% of the beneficiaries had paid Rs. 800 and another 13% had paid Rs. 600 only. Where beneficiaries had paid less than the required sum, the construction work had not even begun.
7. The scheme guidelines require that adequate publicity be given to the basics of the scheme so that potential beneficiaries may opt to participate in it. None of the beneficiaries contacted during the verification process said that the contracting agency had shared any information with them about the scheme.

The Advocacy Initiative:
In September 2008 NAK submitted its findings and photographs, illustrative of the poor state of work, to the authorities with a request to investigate the matter and take action against all guilty officials and agencies. Copies of the report were sent to the the Kalol Nagarpalika, Director, Nirmal Gujarat Programme, Shahri Vikas Nigam, the District Collector, the District Planning Committee, the Municipal Finance Board, the Chief Secretary, the Minister for Urban Housing and Development, the Leader of the Opposition, the Chief Minister, and the Governor. None of these authorities even bothered to acknowledge receipt of the report.

Later in October NAK submitted the report as a public grievance to the District Collector and District Magistrate under the Chief Minister Swagat Karyakram. This programme has been initiated for the purpose of handling people’s grievances about the functioning of the administration. The District Collector directed his Deputy to investigate the findings. The Deputy District Collector contacted NAK to assist him. NAK took him around Kalol showing the places where functional toilets were said to have been constructed on paper. The Deputy submitted his report at the monthly meeting of Swagat chaired by the District Collector. The Chief Officer of the Nagarpalika was also present. The Deputy stated openly that NAK’s report was a true statement of facts and he had nothing more to add. The District Collector sought an explanation from the Chief Officer warning him that he risked losing his job and going to jail for issuing NOCs without properly verifying the completion of the work. He had participated in and abetted a fraud. The District Collector ordered him to get all the toilets properly constructed within a month and submit a completion report to him directly.

The Results:
The contracting agency went back to Kalol and rebuilt all the toilets as per scheme norms. Sewer connections have been provided to all the toilets. The excess money collected from the beneficiaries has been returned to them. The government decided to transfer the Chief Officer out of Kalol.

However the Chief Officer continues to serve in the Kalol Nagarpalika as he pulled political strings to get the transfer order cancelled. The government has not moved an inch to fix accountability of any officer nor has the contracting agency been blacklisted.

The Chief Officer recently asked NAK whether it would be able to take up the contract for constructing toilets during the current financial year. Apparently, the previous agency has refused to take up the job this year as working according to the norms of the scheme is not profitable enough. NAK firmly believes in its role as a citizen watchdog over public authorities and has turned down the offer. This indeed is the expectation of the 11th five year plan document which encourages civil society organisations to take on a monitoring role and ensure proper implementation of plan schemes.

- Narrated by Hanif Waghela, Zakir Sheikh and Aslambhai Dewan for CHRI and NAK.

NAK may be contacted at :- Tel: +91-9979644265; email: nakkalol05@gmail.com

[CHRI has trained NAK to use RTI strategically to hold public authorities accountable for their decisions and actions. CHRI and NAK are collaborating to spread awareness about RTI in Gujarat and monitor compliance of public authorities with their transparency obligations under the RTI Act.]

Proactive Disclosure of non-strategic information- An Initiative of...

Dear all,In June 2009 the President of India stated in her address to the joint session of Parliament that dislcosure of information in non-strategic areas would be improved. While this will be applicable to the Central Government, it is important to take note of a similar initiative launched by the Government of Karnataka from December 2008. A Monthly Programme Implementation Calendar (MPIC) has been designed and disseminated amongst all public authorities to capture the plans and the progress of work regards implementation of various schemes and activities at various level of the State Government.A circular issued by the Chief Secretary, guidelines for filling up the MPIC and various formats to be used including Excel sheets are accessible at: http://finance.kar.nic.in/mpic/planmon.htm The Fiscal Policy Institute in Bangalore is providing backup support to departments to implement this initiative. The scheme was launched under the glare of the media. Compliance has been slow to pick up. The main features of MPIC are given below:Monthly Plan Implementation Calendar in Karnataka:1) Objectives:The Monthly Programme Implementation Calendar (MPIC) is a system intended to facilitate effective and timely implementation of Government’s programmes. MPIC involves detailed planning of important activities which form part of the process of implementation of a programme / scheme and arranging them in appropriate sequence according to a monthwise schedule. The monthwise schedule of activities for the implementation of a programme will help the implementing officers at the state, district, taluk and other levels to take up the programmed activities in a timebound manner according to a planned schedule for optimum results. This will avoid programmes being implemented without adequate preparation, or being unduly delayed. This will also avoid rush of expenditure by government departments towards the end of the financial year. MPIC may be considered as an extension of the Monthly Multilevel Review (MMR) system, which is in operation in the State since the early 1980’s.2) Preparation and Use of MPIC:Apart from indicating the physical and financial targets to be achieved under a programme during different months/parts of a financial year, MPIC will also depict the typical activities to be taken up for implementing the programme every month. Thus, even if no physical or financial targets / milestones are expected to be achieved in a given month, the preparatory activities for achieving the programmed targets during subsequent months are shown in the calendar. The completion or non completion of the activities programmed for every month is reported to enable implementing officers and reviewing authorities to take corrective action on a timely basis so that the targets are achieved within the time allowed for implementing the programme.The MPIC report is to be prepared for every plan scheme including the schemes relating to salaries and other establishment expenditure, and every non-plan scheme excluding the schemes / provisions meant for salaries and office expenses. Thus, plan schemes like Direction and Administration, even though relating to creation of posts and payment of salaries, are included in the MPIC while such items of non-plan expenditure are excluded. Thus, non-plan schemes / programmes like maintenance of buildings, disbursement of scholarships, purchase of medicines, etc., are all included in the MPIC reviews. The MPIC reports are to be submitted strictly complying with the MPIC format as shown in (the Annexures).In typical development departments like Agriculture, Horticulture, Education, Public Works, etc., the responsibility for implementation of programmes goes down to the officers at the Taluk / Sub-division level. The responsibility for reviewing the programmes rests with authorities at the District / Division, State Headquarters / Directorate, and the Secretariat / Ministry levels. Therefore, MPIC formats for most departments are to be prepared separately at the State level by the Head of the Department, at the District / Division level by the District / Division Heads, and at the Taluk / Sub-division level by the concerned implementing officers. In respect of Departments which do not have district / taluk level establishments the Principal Secretaries / Secretaries to Government may specify the authorities including Boards and Corporations which will report progress for MPIC reviews.The progress achieved in the implementation of schemes is to be reported in the MPIC formats by Taluk, District and State authorities in the same manner as in the case of MMR reports. At each level, the progress reported by the lower levels is to be consolidated for review and for reporting to the next higher level. The review of MPIC reports will take place in the Monthly Multilevel Review (MMR) meetings as per the current practice.3) Disclosure of MPIC:The Departments may post MPIC as prepared at the beginning of the year, updated every month with information on progress achieved on their website for public viewing. [A typical MPIC filled up for a specific month is available on the Department of Horticulture website: http://www.horticulture.kar.nic.in/mpic.pdf However the MPIC of this Department for later months is not available on this website. MPIC is not accessible on the websites of a large number of departments and directorates in Karnataka.- CHRI's note]I hope readers will share similar examples from other jurisdictions within and outside India. Andhra Pradesh has a vibrant and working system for proactively disclosing information about the implementation of the National Rural Employment Guarantee Act/Scheme through the Internet. Monitoring compliance with requirements likethe MPIC is the first step towards securing accountability of public authorities.Thanks

DoPT officially confirms again that the RTI Act will be amended

Dear friends,
Vishal has already posted on Humjanenge a link to the press release issued by the Department of Personnel and Training through the Press Information Bureau about what will be amended in the Right to Information Act and the steps they have taken to improve implementation. I have a few comments on the contents of the press release for your consideration. The text of the press release may be accessed at: http://pib.nic.in/release/release.asp?relid=51451

1) Reviewing the Second Schedule:
In July 2009 the Minister for Personnel had stated in Parliament, in response to a query raised by MPs, that the Second Schedule would be reviewed. Readers will remember that the Government of India has placed 22 intelligence and security organisations on this list. Unlike other public authorities they do not have a general obligation towards transparency except in the context of allegations of human rights violation and corruption. This partial exclusion of notified security and intelligence agencies is provided for under section 24 of the RTI Act. The press release states that the organisations on the list would be reviewed to check whether any should be deleted. The list of organisations is provided below:


Intelligence Bureau
Directorate of Revenue Intelligence
Central Economic Intelligence Bureau
Directorate of Enforcement
Narcotics Control Bureau
Aviation Research Centre
Special Frontier Force
Border Security Force
Central Reserve Police Force
Indo-Tibetan Border Police
Central Industrial Security Force
National Security Guard

Special Service Bureau
Assam Rifles
Sashastra Seema Bal
Special Protection Group
Defence Research and Development Organisation
Border Road Development Organisation
Financial Intelligence Unit , India
Directorate General Income Tax (Investigation)
National Technical Research Organisation
National Security Council Secretariat
It is not clear whether the review exercise will include consideration of requests of public authorities like the defence forces who have sought to be brought under the Second Schedule. However, the primary question to ask is - whether this review will be done with or without inputs from the people in general. The Minister for Personnel had assured in Parliament that civil society organisations would be consulted regards amendments to the RTI Act. There is no sign of any public consultation where people's views have been invited. Civil society organisations and all stakeholders including Information Commissions mut be consulted on this issue.

It must also be pointed out that amending the Second Schedule is not the same as amending any other provision of the RTI Act. Amending the Second schedule can be done through a gazette notification and then tabling the notification in Parliament. In reality, this is not an amendment of the Act at all. So this proposal does not actually amount to amending the RTI Act.

What is more serious is the manner in which section 24 and the Second Schedule has been misused in States like West Bengal, Tamil Nadu and recently Uttar Pradesh. Entire categories of information have been excluded under this section. For example, in 2005 the Government of West Bengal listed topics such as “sanction for prosecution”, “verification of antecedents”, ‘preparation of bills and rules” under the Political Branch of the Home Department and “all police reports (except under orders of the Court of Law)” under the Police Branch of the Home Department as being excluded under section 24.

In 2008 the Government of Tamil Nadu excluded the Directorate of Vigilance and Anti-Corruption and the Tamil Nadu State Vigilance Commission stating, " Of late there has been a tendency on the part of some citizens to ask for a lot of information under the Right to Information Act, 2005. The Government feel [sic] that in vigilance cases giving information at the initial stages, investigation stages and even prosecution stages lead to unnecessary embarrassment and will hamper due process on investigation."

More recently the Government of Uttar Pradesh excluded 14 areas completely unrelated to security and intelligence organsiations under section 24. Later 9 areas were withdrawn but 5 continue to remain operational, namely, appointment of Governors; appointment of Ministers of various ranks; letters written by the Governor to the President; code of conduct of the ministers and appointment of Judges of High Court. It looks like adequate intelligence about the RTI Act was not available while drafting these notifications. All these notifications are clearly in violation of the RTI Act. Even though this a matter within the jurisdiction of the States, the DoPT must take a stand against such misuse of the Second Schedule and advise the State Governments to review their respective lists of partially excluded organisations.

2) Adding more topics to the list under section 4(1):
The press release states that more topics will be added to section 4(1) for ensuring more proactive disclosure by public authorities. This position is a reiteration of what the President of India said in her speech to Parliament in June and what the Minister for Personnel confirmed later in July. Improving proactive disclosure is a welcome move. However there is no need for amending the RTI Act to do this.

Sub-clause (xvii) of clause (b) of sub-section (1) of section 4 [4(1)(b) for short] of the RTI Act states as follows:

"Every Public autority shall
X X X X X
b) publish within one hundred and twenty days from the enactment of this Act,—
X X X X X
(xvii) such other information as may be prescribed; and thereafter update these publications every year;"

This clause was included in the Act in order to allow governments to use the Rules (subordinate legislation) route to increase the number of topics on which proactive disclosure should be made. When this avenue is available it is difficult to understand why the Act should be amended at all. Opening up the Act for amendment at this stage will be like opening a Pandora's box.

3) Making a provision for setting up benches of Information Commissions:
The press release states that there is no provision in the RTI Act for setting up benches of the Information Commission to decide upon appeals and complaints. The Act will be amended to enable them to set up benches. Readers will remember some time ago the DoPT had issued an advisory to the Central Information Commission and all State Information Commissions requiring them to decide appeals and complaints in collegium and not in smaller benches as is the current practice. CHRI had critiqued the advisory and members of the RTI fraternity had written to the DoPT to withdraw this circular (click on this link to access the email alert: http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2009/possible_amendment_of_rti_act_2005_email_alerts/bending_over_backwards_to_%20break_rti_june_29_2009.pdf). Now the DoPT wants to amend the Act to enable Commissions to set up benches. This change in stance regards constitution of benches is welcome.
However it must be noted that the RTI Act already lays down the basic principle for allowing Commissions to work in smaller benches. Sections 12(7) envisages the setting up of offices of the Central Information Commission in different parts of the country. Surely if offices of the Information Commission can be decentralised they have no choice but to hold hearings in smaller benches. The entire Commission will not be able to meet to decide every case. Similarly section 15(7) envisages setting up of offices of the State Information Commissions in different parts of the respective state. Section 15(7) has been enforced already in places like Maharashtra and Madhya Pradesh. Information Commissioners are not based at the state capital but in some of the divisional headquarters of the State. They are hearing appeals and complaints and issuing orders everyday. So the Act is not lacking in any manner on the issue of benches. This is a matter to be clarified in the subordinate legislation- namely, the appeals procedure rules.
There is a parallel available from the higher judiciary. We are all familiar with the single, double, division and constitution benches of the Supreme Court and the High Courts. Article 145(2) of the Indian Constitution states that rules shall be made to provide for the number of judges of the Supreme Court who shall sit for any purpose. Specific rules will be made outlining the powers of a single judge or Division Court. Nowhere in the Constitution does it say that the Chief Justice shall constitute such benches. The Supreme Court Rules issued in 1966 empower the Chief Justice of India to constitute such benches (click here for the SC Rules: http://www.supremecourtofindia.nic.in/rulespdf.pdf These Rules were issued with the approval of the President.). The situation is similar in the High Courts.

If the DoPT wants to clear the air regards setting up of benches of the Central Information Commission, the appropriate thing to do is amend the Central Information Commission (Appeal Procedure) Rules 2005. Section 27(2)(e) of the RTI Act contains adequate powers for amending the Rules regards constitution of benches in the Information Commissions around the country. Constituting ebnches is without a doubt part of the appeals/complaints procedure. There is no need to amend the RTI Act for accomplishing this purpose.

4) RTI is a flagship programme:
Please note that the RTI Act has been mentioned on the list of flagship programmes of the Government of India as published on the website of the Press Information Bureau (to access the list click on:http://pib.nic.in/archieve/flagship/flag_faq.asp) Surely a flagship programme ought to be treated with more care.

What can we do?

Please send the following sample email/letter to the Minister Personnel, Pensions and Public Grievances:

"Dear sir,
The press release issued by your Ministry through the Press Information Bureau on 03 August, 2009 indicates that the Right to Information Act, 2005 (RTI Act) will be amended in order to make it more effective. We welcome your Ministry’s initiative to improve implementation of the RTI Act. We also welcome the sanction of funds to build the capacity of Information Commissions and to promote awareness about the Act amongst people.

However we would like to point out that it is not necessary to amend the RTI Act in order to strengthen its implementation for the following reasons:

1) Review of the list of organisations in the Second Schedule: This can be accomplished with a gazette notification (subsequently to be tabled in Parliament). It does not require amendment of any provision of the RTI Act.
We urge you to bring your influence to bear on the State Governments in West Bengal, Tamil Nadu and Uttar Pradesh and such other states to remove all organisations and categories of information that have been brought under the cover of section 24 wherever they do not fit the criteria provided in that section.

2) Adding more topics to the list in section 4(1): The power to notify more topics for proactive disclosure in public authorities already exists in sub-clause (xvii) of clause (b) of sub-section (1) of section 4. The list of topics may be added by making the necessary rules for which power is available in subsection (1) of section 27. There is no need to amend the RTI Act for this purpose.

3) Constituting smaller benches of Information Commissions: This power already exists in the Government of India and the State Governments by virtue of section 12(7) and section 15(7) respectively. This can be accomplished by suitably amending the Central Information Commission (Appeal Procedure) Rules 2005. There is no need to amend the RTI Act for this purpose.

We, the citizens of India who are the holders of the fundamental right to information guaranteed by our Constitution, wish to be consulted on all these and other issues related to the implementation of the RTI Act. We urge you to adopt public processes for collecting opinion regards any move to make changes in the RTI Act or in the Rules framed under it.


Thanking you,
Yours sincerely,


(Name and address of the sender)

NO AMENDMENTS - LEAVE OUR RTI ACT ALONE."

Send your email/letter to:

1) Mr. Prithviraj Chavan, Minister of State, Personnel, Public Grievances and Pensions, Government of India .
Email: mos-pp@nic.in or chavanprithviraj@sansad.nic.in

2) Mr. Rahul Sarin, Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India .
Email: secy_mop@nic.in

Please send us a copy of your email at venkatesh@humanrightsinitiative.org. Please circulate this email amongst your networks. Please let us know if you do not wish to receive such emails in future. You can access our previous email alerts at: http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htm

Thanks

DARPG Guidelines on Email Management in the Government of India

Dear all,
The Department of Administrative Reforms which is part of the Ministry of Personnel, Public Grievances and Pensions has issued a set of guidelines for officers of the Central Government about the use of emails in office. The complete text of the guidelines is accessible at: http://darpg.nic.in/arpg-website/ereference/e-mail-mgmt.doc

I have listed below the highlights of these guidelines:

1) The purpose of using emails in Government Departments is to:

· Disseminate information
· Share records and reports within and between work groups
· Share agendas and minutes
· Circulate draft documents
· Coordinate meetings, appointments and work schedules and
· Support informal/formal approval processes.

Note: The Guidelines do not specifically mention that it may be used for communicating with people in general. We do not knwo what is the nature of email traffic with Central Government officers for official purposes. The above listing gives the impression that it may be very low for several departments and high for others like Finance.

2) References to RTI Act:

a) With effective records management system in place, it [emails] can also be used extensively to handle requests for information under the Right to Information Act, 2005. (para 2.1)
b) E-mail messages created in the conduct of Government business are official records and are the property of the Government of India. They are retained as evidence of business activities and to meet legislative, and government/departmental business requirements. All e-mail messages created or received by employees using the Government of India e-mail systems may be accessed as part of a legal discovery process or Right to Information request. (para 5.1)
c) E-mail messages may contain evidence of business decisions, actions, and transactions. Rules of disclosure are the same as for paper records and mean that departments may be obliged to provide access to e-mail messages in the event of a legal dispute or as part of RTI request. This can include messages on hard copy, on hard drives or on networks. In terms of the Public Records Act, 1993, the e-mail messages are records and are to be managed accordingly. (para 6.2)
d) The Right to Information Act, 2005 also provides that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated. Thus, the electronic records management is now a statutory obligation. (para 6.2)

Note: The RTI Act includes 'emails' within the definition of information under section 2(f). The fact that emails are the property of GOI ensures that no individual oficer will be able to claim copyright protection on emails. I have heard that some countries allow copyright protection for official emails. I have not been abnle to find out which countries have such systems.

3) Emails are whose responsibility?:
Individual employees are responsible for creating, using, communicating and sharing e-mail messages in accordance with their respective Departmental instructions. They are also responsible for ensuring that e-mail records are kept as evidence of business activities and that these e-mail records are available to meet legislative and departmental business and accountability requirements. [para 5.1(I)]

4) Privacy and Security:
Not all the Government of India e-mail systems have security features such as encryption. E-mail should be used with the assumption that messages may be read by someone other than the intended recipient and users should not assume or have an expectation of privacy or security of their e-mail. and confidentiality issues should be considered when choosing e-mail as a means of communication and the employee using e-mail for communication should follow the Departmental Security Instructions issued by the Ministry of Home Affairs. (para 6.2.2)

Note: It is good that privacy protection is not available to officers using emails in the performance of their official responsibilities.

5) Determining which e-mail messages are records: (para 7.1)
The following are broad parameters to identify which e-mail messages are considered Government of India records:
Messages detailing the position or business of any department;
Messages initiating, authorizing or completing a business transaction;
Messages received from external sources that form part of a departmental record;
Copies containing more or less information than the original record;
Original messages of policies, procedures, guidelines and standards.
Where the records do not exist elsewhere:

Messages related to work schedules and assignments;
Agenda and minutes of meetings;
Briefing notes;
Final reports and recommendations.
6) Are e-mail drafts considered records?: (para 7.1.2)
The decision to retain e-mail drafts depends on the content of the draft and its function. Drafts showing the approval processes are considered records under the Government of India’s records management policy. Therefore, they must be retained and filed by the originator along with any other records that support the approval process.

Note: This is simply fantastic as in many European countries it is not possible to access drafts of official emails or documents if they have not been completed yet. Their laws have an exemption barring disclosure of drafts of hard copy documents also. As the Indian RTI Act does not have such an exemption technically it must be possible to access drafts of emails. Extending this argument further, theoretically it is possible to access drafts of documents prepared by officials in hard copy even before they are finalised. I think this links very well with section 4(1)(c) of the RTI Act which requires proactive disclosure while formlating important policies.

7) Filing emails: (para 7.3)
It is not necessary to keep more than one format of an e-mail record. However, the version kept will depend on the departmental policy. For example - if a copy of the e-mail message has been printed and filed or copied in some other system with the requisite details, the original messages may be deleted. Subject to the Departmental internal instructions, the e-mail user has the following three options:

· Retain the e-mail in the e-mail system
· Copy the mails with the requisite details and delete the original version.
· Print the mails alongwith the requisite details and file. The electronic version may be deleted.

Electronic messages, pertaining to the conduct of Government of India business, must remain intact in terms of their content, context and structure:
Structure: e-mails retain their layout and format together with links to attachments and related documents
Content: what information is contained in the message
Context: documents who was the sender and recipient, header information and time and date of the transmittal.
E-mail records retained in electronic format should be filed in accordance with the departmental record management practices and the file numbering system applied to the paper records. This will maintain a link between messages and attachments, and any related paper records created and stored in the section or the department record office. Where an e-mail addresses a number of subjects, it can be added to other applicable folders for cross referencing and to meet retention requirements.

How and where e-mail messages are stored will depend on the technology architecture and resources available in the department. These e-mails may be kept:
In MS Outlook/Exchange
In Lotus Notes
In Personal Directories and Files
In workgroup shared directories or folders
In an electronic document management system
Or, otherwise, may print to paper and filed appropriately.It is important to consider who requires access to the e-mail records when deciding where they should be stored. E-mails stored on personal folders on MS Outlook or in Lotus Notes will be difficult to retrieve by other individuals who may require access to them.

8) Retention schedule for emails: (para 10)
As with any departmental record, e-mail records may have various retention periods depending on their content. It is not possible to apply one rule to delete all e-mail messages after a defined period of time. Normally, e-mails are processed either in the e-file or in the paper file and, in such cases, therefore, their retention period will depend upon the nature and subject of the file and the retention schedule needs not be applied to the e-mails individually.

E-mail records may only be disposed of in conjunction with approved retention schedules. Retention schedules currently used for departmental paper-based records can be applied to e-mail records maintained in electronic format.

9) Deleting emails: (para 10.1)
It is the responsibility of the originator or recipient of the e-mail messages to determine which e-mails are records and must be retained and which can be deleted. The e-mails may be deleted, if Departmental instruction permits, immediately after they have been printed and filed or copied in other system with its attachments and other requisite details. Users should perform regular clean-ups of the e-mail "in-box" and "sent items" folder by filing e-mail records and by deleting the others.
E-mail messages may still be stored on departmental file servers or back-up tapes even after they are deleted from the desktop. Back-ups are performed on the e-mail system on a regular basis. Also, other recipients or senders may keep electronic or paper copies of the e-mail messages, and/or may have forwarded them to others. Users should not assume that because they have deleted the e-mails from computer files they no longer exist.

Note: This explanation is good as a deleted mail may still be recoverable in theory if all steps have not been taken to ensure complete destruction of the record.

There's more in the actual text. I hope this will be to use to the readers. Please circulate this as widely as possible.

And the Empire Starts Rolling Back Openness

And the Empire Starts Rolling Back Openness

- Venkatesh Nayak and Dr. Rakesh Ranjan

The grapevine hangs heavy with rumours of bureaucrats working overtime to amend the Right to Information Act (RTI Act). This is along expected lines. During its infancy the RTI Act has been instrumental in putting a former Minister behind bars and the initiation of departmental action against several unscrupulous and corrupt officers in many parts of the country. Given this impact of a toddler what would happen when the Act comes of age? The empire seeks to strike back by cutting down RTI to a ‘manageable’ size. The axe is being honed at the very forge where this citizen empowering tool was crafted.
How do we know this? First we must carefully read the Honb’le President’s address delivered at the joint session of parliament. While promising that her government would come up with a public data policy to place all non-strategic information in the public domain, the President clearly stated that the RTI Act ‘will be amended’. All past promises to leave the Act intact appear to have gone with the wind. Dr. E M S Natchiappan the Chair of the parliamentary committee examining the implementation of the Act had publicly said that his committee would not recommend any amendment. That committee report has not seen the light of the day yet. If this position held true, the Hon’ble President would not have mentioned the word ‘amend’ in the same sentence as the RTI Act. There is a clear and present danger to the integrity of the RTI Act.
So where is the axe going to strike? There is no official word yet but a government document placed in the public domain provides vital clues. The Second Administrative Reforms Commission (ARC) made several recommendations for strengthening the RTI Act- described as the ‘master key to good governance’. The Government of India (GOI) has made up its mind on what to accept.
The first strike is likely to insulate official file notings from public scrutiny. File notings show up the manner in which a decision is reached. It contains opinion and advice tendered by officers. The Manual of Office Procedure requires that the ‘notes’ portion of every file be kept confidential. The ARC said delete these instructions. GOI rejected this advice.
In 2006 the Department of Personnel and Training (DoPT) burnt its fingers while trying to restrict access to file notings only on socio-economic and developmental matters, minus the names of officers who authored them. The proposal was temporarily shelved thanks to vehement opposition from civil society, the media and MPs of the Left Front. Despite all this GOI has sought 11 extensions from the Rajya Sabha Assurances Committee for reaching a final decision on file notings. At the same time despite several decisions of the Central Information Commission, and a string of instructions and protests the DoPT stubbornly refused to remove information on its website that wrongly states that file notings do not come within the ambit of the Act when clearly they do. The battle lines are drawn. The threat to people’s right to know is not going away soon or easily.
The government has accepted the ARC’s recommendation to enable a public information officer to reject an information request if it is frivolous, vexatious or seeks voluminous quantities of information. If this amendment goes through, the already reluctant public authorities will have a ready excuse to hide information that may reveal corruption and poor-decision making. Appeals and complaints on this account will increase the existing burden on Information Commissions.
Another retrograde recommendation of the ARC was to add the three defence forces to the list of excluded organisations. While this recommendation has not been accepted, a door has been left open to the Ministry of Defence to bring a comprehensive proposal on the subject. GOI’s response reads less like a rejection and more like an invitation to the armed forces to seek exclusion from the RTI Act. A blanket exclusion on bodies or classes of information is anathema to the practice of open, responsible and accountable government. Yet efforts are on to change the locks on some important doors rendering the ‘master key’ useless.
Government has rejected several other more progressive recommendations without much justification. For example, it has refused to alter the government’s domination of the selection committee that recommends candidates to be appointed to Information Commissions. Nor is it in favour of reserving 50% of the seats in the Commissions for non-bureaucrats. The Official Secrets Act and the oath of secrecy will stay on like family heirlooms inherited from the British Raj. Voluntary disclosure documents prepared under section 4 of the Act will not be printed as it is perceived to be an expensive exercise. Instead they will be uploaded on the Internet for the benefit of the less than 6% web-savvy citizenry. No separate funds allocation will be made for improving records management. No officer will be appointed at the district and sub-district level to monitor the implementation of the Act as that could lead to inter-departmental conflict. In short bureaucrats have accepted only those recommendations that serve their interests.
The writing on the wall cannot be any clearer. Sooner or later attempts will be made to roll back several positive features of the Act. Unless every citizen who has made use of the RTI Act stands up to its defence, few may rush to its rescue. The time has come for all of us to repay the debt that we owe to RTI- protect it, nourish it and defend it because we have benefitted from this fundamental right.
[Venkatesh Nayak is Programme Coordinator and Dr. Rakesh Ranjan is external Collaborator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi]

Proposed Amendments to the RTI Act 2005

Dear Friends,

As you are aware, the UPA government is proposing to amend the RTI Act। An article in the Times of India dated 19 June: (http://timesofindia.indiatimes.com/India/Proposal-to-exempt-file-notings-may-leave-RTI-toothless/srticleshow/4673325.cms) outlines some of the provisions that could possibly be amended, which correspond with those discussed in our recent notes on the same. We outline them again below:

A) Proposed amendments to exempt file notings:

File notings exempt: If the amendment goes through, file notings will be exempt from disclosure under the RTI Act, apart from those dealing with social and development issues. This means that all file notings that do not relate to social and development issues will be exempt from disclosure.

Granting anonymity to officers: Regarding those file notings which can be accessed, another proposed an amendment will grant anonymity to officers who made them. This means that citizens will no longer have the right to know the names and designation of the officials who gave their opinions or advice on any matter considered by the government, even after the decision is taken.

No access to decision-making process: Another amendment will block any information, legal advice or observation relating to a policy or executive decision which is under consideration. This amendment will deprive citizens’ access to information regarding any decision-making process before a formal decision is made.
What is wrong with these amendments?
a) The RTI Act enables citizens to exercise their fundamental right to access information held by public authorities. RTI is subject to exemptions mentioned in Section 8 of the Act which are by and large in conformity with the list of reasonable restrictions mentioned in the Constitution. By severely limiting access to file notings, the Government will impose an unreasonable restriction on the citizens’ fundamental right to information. In effect the Government is asking Parliament to violate the caveat provided in Article 13(2) of the Constitution that no law will be passed by Parliament or State legislatures that will take away or abridge fundamental rights in any manner.
b) These amendments will deliver a severe blow to the very objective of the RTI Act namely, “to hold Governments and their instrumentalities accountable to the governed.” Accountability is a key attribute of good governance recognised the world over. It is not adequate for the purpose of entrenching accountability to provide access only to the final decisions of a public authority. People have a right to know the details of the decision-making process including the concurring and dissenting opinions expressed by all officers involved. Transparency in the decision-making process ensures that officials record on files only opinions and recommendations that have a basis in law and established norms and legitimate procedures.
c) It is well known that considerable discretionary powers are vested in the hands of the executive to carry on day-to-day admin istration. Restrictions on access to file notings and the granting of anonymity to the officers who made them will only encourage unscrupulous and corrupt elements in the admin istration to act with impunity. Transparency on the other hand will ensure that all officers will give their opinions and act in a responsible manner as they will be subject to public scrutiny.
d) The Government claims that the proposed amendments will allow access to file notings on development and social issues. However in the absence of clear definitions of such terms, these amendments will only increase the discretionary power of officers to deny access to file notings on a majority of issues.

B) Proposed amendment to restrict access to cabinet documents:

Currently citizens have a right to access not only decisions of the Council of Ministers after they are made and the matter is complete, but also the reasons behind the decision and the materials that formed the basis for that decision. Access to Cabinet papers is denied under Section 8(1)(i) of the Act only so long as the decision is pending. The proposed amendment restricts access to cabinet documents, taking away the citizens’ right to access the material which forms the basis of a decision of the Council of Ministers. People will be deprived of the right to know what kinds of materials were considered by the officers suggesting a course of action on any matter that requires cabinet approval.
What is wrong with this amendment?
The proposed amendment imposes unreasonable restrictions on the citizens’ right to access papers relating to the decisions taken by the Council of Ministers. People have a right to know the final decisions of the Council of Ministers and what is contained in the materials that officials have considered when making a decision. High standards of transparency should apply equally at all levels of decision-making from the lowest to the highest tier.

C) Proposed amendment to restrict access to exam-related information:

Another proposed amendment restricts access to exam-related information that may adversely affect the objectivity or fairness of recruitment, examination and evaluation processes.
What is wrong with this amendment?
The RTI Act does not currently exempt access to information the disclosure of which may adversely affect the objectivity and fairness of examinations, recruitment and promotion processes conducted by a public authority. Secrecy in examination and selection processes allows bad decisions, favouritism and even nepotism to go unchecked, because examiners and assessors are never required to publicly justify their decisions.

D) Proposed amendment to hike fees:

This amendment has been suggested to discourage chronic and motivated information seekers. The suggestion is to increase the current fee of Rs. 10 and make citizens pay the actual salary of the officers working on RTI in addition to the costs of photocopying or otherwise accessing the information sought. It appears that this proposal is based on a recommendation by the Administrative Reforms Commission to deal with vexatious and frivolous requests or where voluminous information is sought.

What is wrong with this amendment?

a) When access to documents (other than of A-4/A-3 size) or materials is sought, the only costs currently incurred by the requestor are the costs relating to the reproduction of the information or the supply of sample materials. It is clear from the current RTI rules that there is no empowering provision to require requestors to pay costs relating to the wages of officers, search compilation or other related activities. There is also no provision in Section 27(2) of the RTI Act for making rules that will enable a PIO or any other authority to charge the requestor for wages of officers.

b) India is a country in which more than 80% of citizens survives on less than US$2 per day. Increasing the application fee or making citizens pay for wages of officers working on RTI will only act as a severe disincentive for people who would otherwise have used the Act to access information. The amendment, if passed, will also be exploited by PIOs and other authorities under the Act in order to discourage people from seeking the disclosure of information relating to wrongdoing or instances of corruption. The primary objectives set out in the Preamble of the RTI Act – to create an informed citizenry, contain corruption and enable people to hold government and its instrumentalities accountable – will be defeated if this amendment goes through. The general rule-making power cannot be used to impose unreasonable burdens or create any disincentives for requestors.

How to save INDIA from corruption by using RTI Act?

How to save INDIA from corruption by using RTI Act?

In this article we have talked about the RTI (Right to Information) act. This act, has given the people, the power to CHANGE the country. The RTI act has made the inner working of the Govt. transparent! If YOU, the average citizen learns to use this act, YOU can change the country.

In this article, we have told you everything that you need to know about the RTI Act, how you can use it, how it affects you etc! Even if you know nothing about “politics” or “laws” do not worry. This article is written in a very simple and easy to understand way keeping the lay man in mind.
If you think that the RTI Act does not affect you, "YOU ARE WRONG!"
If you are a citizen of Indian, the RTI Act has given you a lot of power that you can and must use. For example, next time you ask for a “phone line” or a “water connection”, if you use the RTI Act, you can get your work done quickly. You will not have to make 15 trips to the Govt. offices and bribe and beg the officials to get your work done. RTI has changed all that. Though this article we will show you how to use RTI, to get your work done!
Are the roads outside your house terrible, RTI will help you solve the problem. Is there a problem of un-hygiene in your area, RTI will help you solve your problem.
If you are young and cannot appreciate all the above points, then believe us that sooner or later you will have to go and get some of your work done though Govt. offices. When you do, you will appreciate the power RTI. But, by then it will be too late. Why? Because there is talk about RTI being changed so that the power is taken away from the people. In this article we have showed you how you can fight this and support RTI.
Basically, if you are an Indian, YOU MUST read this! Not only that, do tell as many people as you can to also read this. Do this for your country!
Now, in the next section we shall try to understand what the RTI Act is all about...
Khoj K. Badami

http://www.indiahowto.com/

National RTI Awards 2009

National RTI Awards 2009

Public Cause Research Foundation invites nominations for the first ever National RTI Awards 2009. Instituted this year, these awards will be given away sometime in October every year to those who have displayed exemplary commitment to RTI.

Despite the power of Right to Information (RTI) to transform Indian democracy, the Act faces stiff opposition from many sections of the government, particularly the bureaucracy. For example many Officers are not performing satisfactorily. Some Information Commissioners, who are the final adjudicating authority under the Act, are perceived to be sympathetic to bureaucrats. But there are many among the bureaucrats who are committed to transparency and honesty. They go over and beyond the call of duty to implement the RTI Act in letter and spirit.

Our intent is to honour and recognize the best among these officers and commissioners. We hope that by recognizing their contribution, they can serve as role models for the bureaucratic community as a whole and encourage others to follow in their footsteps and strive to emulate their achievements. The awards will also serve as an opportunity to gather valuable data about the performance of a large number of PIOs and Information Commissioners across the country. This data can go a long way in identifying shortcomings in the current system of RTI and suggesting possible reforms.

In all, there are five awards instituted in three categories. One award would be given to the most outstanding Information Commissioner who enabled access to correct and complete information to maximum number of appellants and enforced RTI Act in its true letter and spirit. Two awards would be given to those Public Information Officers who provided complete and correct information in maximum number of RTI applications within the prescribed time limit. Two awards will be given to such citizens who created maximum public impact by using RTI Act.

Each award carries a citation, a plaque and prize money of Rs. 2 Lakhs. Apart from the awards, at least a dozen citations would be given away to the Information Commissioners, Public Information Officers and Citizens.

The awards boast of a jury comprising of very eminent personalities - Aamir Khan, Actor and Film Maker; Fali S Nariman, Constitution expert and senior advocate; J M Lyngdoh, Former Chief Election Commissioner of India; Madhu Trehan, Author and media personality; Mallika Sarabhai, Kuchipudi and Bharatnatyam dancer and social activist; N R Narayana Murthy, Chief Mentor Infosys; Dr Prannoy Roy, Chairman, NDTV; Pullela Gopichand, Ace Badminton player and National Badminton coach; Sanjay Gupta, Editor and CEO, Dainik Jagran Group; Santosh, RTI grassroots activist; Justice J S Verma, Former Chief Justice of Supreme Court and Chairperson, National Human Rights Commission.

All Information Commissioners in the country are automatic nominees and they needn’t apply. However, nominations are being invited from Public Information Officers and citizens. They can either apply themselves or someone else can nominate them. One could apply online at www.rtiawards.org or could obtain forms for application from National RTI Awards Secretariat and apply by post.

Last date for filing nominations is 30th June 2009.

For any clarifications, please contact Swati at 9868599427.

Dear friends,
I am writing to once again alert you to an important development involving interpretation of a crucial section of the RTI Act.
You may recollect that the Central Information Commission had issued a public notice in November 2008 inviting submissions from people on the scope and ambit of section 7(3) of the RTI Act. That notice may be accessed at: http://cic.gov. in/ PublicNotices/ NoticeForHearing- 27102008- A. pdf.
CHRI and a few other parties had submitted their views on how this important section relating to additional fees must be interpreted. The matter related to a second appeal pending before the CIC involving the Institute of Company Secretaries (ICS). CHRI's submission is attached to this email. ICS argued that 7(3) allows the PIO to charge wages of officers, search fees, collation and compilation costs and other similar costs on the applicant. We have strongly opposed this view. A full bench comprising the Chief Information Commissioner Mr. Wajahat Habibullah, Information Commissioner, Prof. M A Ansari and Information Commissioner Satyananda Mishra heard the case on 24th February, 2009. Two civil society representatives - Shri Sarbajit Roy and Shri Rakesh Gupta were present in addition to CHRI representatives. There was nobody from any of the public authorities except ICS. CHRI and other civil society resentatives argued that there was no scope in 7(3) for forcing the applicant to pay all kinds of fees conceivable under the sun. At the end of the hearing the bench informed us that the decision in this case has been reserved. We have been waiting for the CIC's decision since then.
3 weeks ago, I received by post a notice for another full bench hearing in the same matter scheduled for 8th June 2009. The text of the notice sent to 19 public authorities is copied below. The list of people who have been invited to make submissions and attend this hearing are all heads of Ministries and PSUs such as Ministry of Personnel, Ministry of Law, Ministry of Company Affairs, Ministry of Public Enterprises, Chairmen or CMD of the following PSUs: BHEL, BPCL, BSNL, FCI, GAIL, General Insurance Corporation Ltd., IOCL, MTNL, MMTC, National Insurance Corpn. Ltd., NTPC, ONGC, State Trading Corpn. and SAIL. The notice has been copied to me and Shri Roy who had made submissions earlier. We have not been asked to submit our views again. From the cc. list it appears that Information Commissioner Shailesh Gandhi has replaced Information Commissioner Satyananda Mishra on the bench. A few days ago this notice has been uploaded on the CIC website at: http://cic.gov.in/PublicNotices /NoticeForHearin g-08062009. pdf Strangely my name and Sarbajit Roy's name have been deleted from the cc list. The notice does not invite suggestions from citizens other than the above officers.
The following questions are bothering me:
1) Why should a new bench be constituted to rehear the matter after the decision has been reserved by a previous bench especially when all members continue to serve on the CIC? It is understandable if the bench had been reconstituted due to the retirement or resignation of a member. However that is not the case here.
2) Why have only a handful of Ministries and PSUs been targeted with this notice?
3) Why does this notice not say that members of the public can also make submissions to the CIC in this matter?
I would urge all friends to circulate this email within their networks। Please ensure that you and your friends send a large number of submissions to the CIC. Please tell the CIC that the PIO cannot charge wages, search, collation, compilation at one's whim and fancy under section 7(3). There is no power for doing so under the RTI Act. You are welcome to use CHRI's submission for formulating your own arguments. Our submission is copied below. Please send your submissions to the CIC at the address given below. If you will be in Delhi or can make a trip to Delhi on the date of the hearing: 8th June 2009 at 4.30 pm at August Kranti Bhavan, please do attend the hearing and oppose any move to empower the PIO to charge exorbitant fees for giving information. If you cannot attend please send your submission to the CIC. If you are too busy to attend the hearing in person please send the response suggested below by email or post.

Suggested Response to be sent by Email/Post

To,
The Registrar,
Central Information Commission
2nd Floor, 'B' Wing
August Kranti Bhawan
New Delhi- 110 066
email: pkp.shreyaskar@ nic.in

Date:
Dear sir,
We have learnt from our network partners in Delhi that the Central Information Commission is rehearing the matter regards the scope and ambit of section 7(3) of the RTI Act. We believe that this section should not be misused to collect wages, search and compilation or other similar kinds of fees from RTI applicants. The PIO does not have the power to charge such kinds of fees under the RTI Act. We have enclosed our detailed arguments about the scope and ambit of section 7(3) of the RTI Act. We urge you and other Information Commissioners on the bench to take these arguments into consideration while deciding this matter. We urge you not to interpret section 7(3) in a manner that is violative of the letter and spirit of the RTI Act.
with best wishes,
sincerely,

Signature of the sender



Text of CHRI's submission to the CIC:
Ambit and Scope of Section 7(3)
of
The Right to Info rmation Act, 2005
Relating to Further Fee

Introduction
The Central Information Commission (CIC) has issued a public notice on 27 October, 2008 seeking people’s views on a matter relating to the issue of further fee payable under the Right to Info rmation Act (RTI Act/principal Act). The text of the public notice is reproduced below:

“WHEREAS, in the aforesaid appeal case [Shri K K Kishore v Institute of Company Secretaries of India – (CIC/MA/A/2008/ 01085)], an important question has arisen as regards the ambit and scope of Section 7(3) of the Right to Information Act, 2005 which deals with charging of further fee to be determined by the CPIO;
2. AND WHEREAS, it has been decided that a Full Bench of the Commission shall hear the aforesaid case involving the above issue.
3. NOTICE is, therefore, given to the general public and to the interested organizations that they may, if they so desire, file written submissions so as to reach the Commission by 2nd December, 2008
4. The Commission is likely to hear the matter in the second week of December, 2008.”

The absence of a uniform interpretation of this provision in the decisions of the Central Information Commission has caused confusion in the minds of information requestors about the kind of fees they are legitimately required to pay while using the Act for accessing information. There is no uniformity of interpretation in the decisions of State Information Commissions either. CHRI congratulates the CIC for electing to consult people in order to formulate a common position on such an important matter.

1. The Scheme of Section 7

1.1 Understanding the scheme of the arrangement of sub-sections and clauses under section 7 is crucial to the interpretation of the provision relating to further fee (also popularly known as additional fee in civil society circles). The margin note to section 7 indicates that it contains provisions for ‘disposal of the request’. The term ‘disposal’ in common parlance is understood as a process of making a decision on a matter that is under consideration. It is not merely a single act but a chain of several actions constituting a process, at the end of which, a definite outcome is both required and expected. The step by step procedure to be followed by the public information officer (PIO) for making a decision on an information request, received under the preceding section (6) of the Act, is described in outline in the whole of section 7.

1.2 Sub-section (1) provides a summary recital of the action to be taken for disposing a request and links it to a time limit. The exception to this time limit is provided in the proviso.[1] The recital summarises the two courses of action open to the PIO while making a decision on the information request –
a) he/she may provide access to information on payment of such fee as may be prescribed or
b) he/she may reject the request for any of the reasons specified in sections 8 and 9.[2]

Both courses of action must be completed in thirty days unless the circumstance envisaged under the proviso requires to be taken into account. This provision is subject to two more conditions both of which have to do with time limits namely, applications forwarded by the Assistant PIO under section 5(2) or transferred by another public authority under section 6(3).1

1.3 Sub-section (2) continues on the topic of time limit and explains the consequence of not adhering to the limit stipulated in sub-section (1).

1.4 Subsection (1) therefore may be said to contain a reference to the parameters that must characterise the ‘disposal process’. Only the detailing of the parameter of ‘time limit’ is provided in this sub-section and in sub-section (2). The details of other parameters that characterise the disposal procedure are dealt with in subsequent sub-sections. It is important to take note of the fact that the parameter of ‘time limit’ – the first to be mentioned in the recital contained in sub-section (1) – is also the first to be dealt with while providing procedural details. Similarly, the option of providing information on payment of fee precedes the option of rejection in this summary recital. Indeed this is the scheme followed in the subsequent provisions where procedural details are described for both courses of action.

1.5 Sub-section (3) contains the details of procedure to be observed where a decision has been taken to provide access to information on payment of further fee.[3]

1.6 Sub-section (4) deals with the duty of the PIO to provide assistance to requestors who may suffer from sensory disability to enable their access to information. This is also in keeping with the scheme outlined in sub-section (1) as it is a part and parcel of the process of providing access to the requested information. If information cannot be read, seen, heard sensed or understood by a person with disabilities mere handing over of the information to the requestor does not amount to providing ‘access’ to information or ensuring the enjoyment of the right to information as required under section 3 of the Act.

1.6 Sub-section (5) indicates how access to printed or electronic information may be provided. Fees are required to be prescribed for providing access to such information. This sub-section contains a proviso which marks the fee mentioned in the main clause, the application fee [section 6(1)] and the fee mentioned in section 7(1), required to be prescribed under the Act, with the characteristic of reasonableness. Furthermore all such fees are required to be waived for people who are below the poverty line. Additional facets of the second parameter are discussed in this sub-section.

1.7 Sub-section (6) provides a remedy for a requestor who is not given access to information within the stipulated time limit. The remedy is linked to the second parameter namely, fees – the requestor has a right to obtain the information free of cost if the PIO fails to meet the stipulated deadline. There is no further reference to the second parameter in subsequent sub-sections.

1.8 Sub-section (7) pegs a caveat in the disposal process where third party interests may be involved. Again this is part of the first procedure, namely providing access to the request. Section 11(1) clearly states that third party procedure may be invoked only if two conditions are satisfied:
a) the PIO should be intending to disclose the information. In other words none of the grounds for rejection of a request mentioned in sections 8 and 9 can be invoked and
b) the information should relate to or should have been supplied by a third party and that third party should have treated such information as being confidential.

1.9 Sub-section (8) describes the second course of action available to the PIO. If the requested information attracts any of the exemptions mentioned in section 8 or 9 the PIO may reject the request.[4]

1.10 Sub-section (9) relates to the first option, namely, providing access to information. However it does not describe any procedure. It lays down an important principle that is intended to guide the PIO. Ordinarily the requestor has a right to receive information in the form in which he/she has sought, namely, photocopies, CDs and floppies or inspection etc. However two caveats are linked to this principle – i) the resources of the organisation should not be disproportionately diverted or ii) no detriment should be caused to the safety or preservation of the record.

This is the narrative scheme of section 7 as enacted by Parliament.


2. Understanding section 7(3)

2.1 The text of section 7(3) is reproduced in full below:

“(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving—
(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section;
(b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms. ”

2.2 Meaning of ‘further fee’: The PIO is required to send a written intimation to the requestor if a decision is taken to provide the information on payment of further fee. As the noun ‘fee’ is qualified by the adjective ‘further’, a determination must be made as to what is this fee further to. The obvious reference is to the fee that is required to be collected prior to the initiation of this procedure. The only fee whose procedural details are given in the Act prior to this reference is the application fee. The fee mentioned in section 7(3) is ‘further’ to the application fee mentioned in section 6(1). The phrase ‘payment of such fee as may be prescribed’ found in section 7(1) cannot be construed as a category of fee that has an existence independent of the ‘further fee’ mentioned in section 7(3). They are one and the same.

2.3 How should the ‘further fee’ be determined?: Section 7(3) lays down an important principle for determining ‘further fee’. It should ‘represent the cost of providing the information’. The Act does not provide any guidance as to what elements should be included in this cost. This responsibility is vested with the appropriate government; in the instant case – the Government of India, in the context of rule-making powers under section 27 (2).

2.4 Clauses (a) and (b) of section 7(3) explain how information about further fee shall be communicated to the requestor. The fee intimation must contain four parts:
Ø details of further fees representing the cost of providing the information as determined by him/her;
Ø calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1);
Ø request to deposit the fees and
Ø information concerning the right of the requestor to seek review of the PIO’s decision regards the amount of fees charged or the form of access provided, the contact details of the appellate authority before whom a request for fee review may be submitted, the time limit, process and any other forms.[5]

2.5 A cursory reading of the first two parts mentioned above may give the impression that these elements represent two different kinds of fees that a PIO may require the requestor to pay. Such a cursory reading may also give the impression that the fees mentioned in the first part must be determined by the PIO (using his/her discretion) while the amount mentioned in the second part is to be calculated in accordance with the fee prescribed under sub-section (1). This is an erroneous interpretation based on a cursory reading of these provisions. An in-depth exploration of the phrasing is necessary to show that this is an untenable position.

2.6 The term ‘fee‘ is mentioned in the singular in sub-section (1) and in the opening portion of clause (a) of sub-section 3. In clause (a) the term ‘fees’ is mentioned in the plural at three places and in the singular at one place. The use of the singular occurs again with reference to sub-section (1). The use of the plural occurs always in relation to the actions of the PIO. The Act does not restrict itself to the possibility of a requestor seeking from the PIO access to information in one form only. A requestor may seek multiple forms of access such as inspection of some records, photocopies or certified copies of others and certified samples of materials used – all in relation to one subject matter. For example, a citizen may make a request for inspection of all bills and vouchers submitted to a public works department office in relation to the construction of a road, seek a photocopy of the contract awarded to the private agency undertaking the construction work, a certified copy of the work order and certified samples of materials used in the course of the construction. The PIO is required to determine how much fee is required to be paid by the requestor further to the application fee. He is required to provide ‘details’ of the fee chargeable for providing access in each form requested. Hence the use of the plural for the term ‘fee’ in the case of the actions of the PIO.

2.7 The reference to ‘calculations’ in clause (a) is indicative of the arithmetic that a PIO is required to work out for arriving at the details of ‘further fee’ which the requestor will be informed to pay for obtaining the information. The Act does not intend for this arithmetic to be worked out on the basis of the whim and fancy of the PIO or any officer within the public authority or any other authority under this Act. The arithmetic must be based on the fee prescribed by the appropriate government – the Government of India in the instant case. All that the PIO is required to do is to make a determination of the total amount of fees payable based on the rules and inform the requestor of its details and the calculations that form the basis for arriving at such a determination.

2.8 The foregoing discussion clearly demonstrates that there is no confusion in the Act in regards to fees intended to be charged for providing access to information. The PIO does not have any discretion to make a determination of fees outside the purview of the rules prescribed by the appropriate government – the Government of India in the instant case.

3. Understanding the rule-making power in relation to fees payable under the Act

3.1 Section 27 of the RTI Act empowers the appropriate government – the Government of India in the instant case to notify rules for giving effect to its provisions. Sub-section (1) provides for a general rule making power to carry out any of the provisions of the Act. Sub-section (2) is more specific. The text of the provision is reproduced below:
“(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4;
(b) the fee payable under sub-section (1) of section 6;
(c) the fee payable under sub-sections (1) and (5) of section 7;
(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16;
(e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub-section (10) of section 19; and
(f) any other matter which is required to be, or may be, prescribed.”[6]

3.2 An in-depth reading of the foregoing provision makes it clear that only three categories of fees are contemplated under the RTI Act. The first is the application fee mentioned in section 27(2)(b) which is to read with section 6(1) mentioned earlier in the Act. The second is the fee payable under section 7(1) referred to as ‘further fee’ subsequently. The third category relates to fees payable for obtaining information in printed and electronic form mentioned in section 7(5). Section 27(2) does not recognise any other fees under the RTI Act. This entire provision is in tune with the scheme of section 7 explained above.


4. Whether wages of officers, search, compilation and other related costs can be realised from the requestor?

4.1 The Right to Information (Regulation of Fee and Cost Rules), 2005 (RTI-RFCR) were notified by the Government of India on 16th September 2005. According to information available in the public domain, only two amendments were incorporated in the RTI-RFCR pertaining to inspection fees and the inclusion of IPOs as a mode of fee payment. No further amendment appears to have been made till date. The RTI-RFCR also does not contain any reference to a separate category of fees payable under section 7(3) of the principal Act. The fee and cost related provisions are reproduced below:
“4. For providing information under sub-section (1) of section , the fee shall be charged by way of cash against proper receipt or by demand draft or bankers cheque payable to the Accounts Officer of the public authority at the following rates:-
(a) rupees two for each page (in A-4 or A-3 size paper) created or copied;
(b) actual charge or cost price of a copy in larger size paper;
(c) actual cost or price for samples or models; and
(d) for inspection of records, no fee for the first hour; and a fee of rupees five for each fifteen minutes (or fraction thereof) thereafter.”[7]

4.2 When access to documents (other than of A-4/A-3 size) or materials is sought, the only costs realisable from the requestor are costs of reproduction of the information or cost of supply of samples of materials. It is clear from the provisions of the RTI-RFCR that it does not contain any empowering provision for the realisation of costs relating to the wages of officers, search compilation and other related activities.

4.3 The contention: “the absence of a specific reference to section 7(3) in the rule making provisions of the Act and consequently in the RTI-RFCR implies that the PIO/public authority or any authority under this Act can charge any cost on the requestor at will, provided calculations are disclosed as justification” is a figment of imagination, having no basis in law. To act on the basis of such a contention is tantamount to arrogating to oneself powers that Parliament never intended to vest in any person or authority in the first place. To impose such an interpretation on any requestor is tantamount to showing utter disregard for his/her right to seek and obtain information which has been given shape by Parliament, the supreme-lawmaking body in India .


5. Whether Rules can be made for charging on the requestor, wages of officers, search, compilation and other such costs related to providing information?

5.1 There is no provision in section 27(2) of the principal Act for making rules that will enable a PIO or any other authority to charge the requestor for wages, search, compilation and other related costs. However it may be contended that general powers exist under section 27(1) of the principal Act for making such rules. This is also not a tenable position because the rule-making power can be used only to ‘carry out’ the provisions of the Act, not defeat or frustrate the intention behind its provisions. While making rules, the appropriate government – the Government of India in the instant case is required to pay attention to the caveat contained in section 7(5) of the principal Act namely: ‘fee prescribed must be reasonable’.

5.2 India is a country in which more than 80% citizens survives on less than US$ 2 per day. Charging a requestor for wages, search and compilation costs will only act as a disincentive for people who would otherwise have used the Act for accessing information. In effect this will also be used by PIOs and other authorities under the Act to discourage people from seeking disclosure of information relating to wrongdoing or instances of corruption. The primary objectives behind the enactment of this law mentioned in its preamble namely: creating an informed citizenry, containing corruption and enabling people to hold government and its instrumentalities accountable for their actions, would be defeated. Therefore the general rule-making power cannot be used to impose unreasonable burden upon or create any disincentives for requestors.

5.3 In the ultimate analysis it must be pointed out that the costs on account of time spent by officers for searching and compiling information are not borne by them from their pockets. The costs will have to be paid from the taxes that citizens contribute to the public exchequer. Charging such costs on the requestor would amount to doubly burdening the taxpayer which is not what Parliament had intended while enacting this seminal legislation.

6. What options are available to reduce the burden on the public authority where excessive time and resources are required to be spent on providing information to the requestor?

6.1 It is commonplace to quote from section 7(9) and section 7(3)(b) as options available for ensuring that the resources of a public authority are not excessively burdened while providing information in the form or to the extent requested by the citizen. However a more practical solution exists in section 4(1)(a) to tackle this problem.

6.2 Section 4(1)(a) requires every public authority to index, catalogue and maintain its records in a form that makes them easily accessible. Additionally this provision requires every public authority to computerise all records within a reasonable time and connect them through a network all over the country. If this provision were to be implemented in a time-bound manner, access to the records and documents in every public authority would be considerably easier. Time and resources spent by officers to deal with information requests would also come down significantly. This provision has not been taken seriously by many public authorities. This is a major reason why providing access to information is perceived to be an expensive exercise. If a public authority has not created such convenient systems despite the Government’s conscious policy of evolving offices from paper-heavy to less-paper or paper-less status it is only indicative of the lack of foresight on the part of the highest decision-making officers within that public authority.

6.3 Rather than look for ways of creating disincentives for citizens who wish to access information, more attention needs to be paid to set the house of public authorities in digital order. Information and communications technology which India takes pride in developing must be harnessed to serve people’s right to information. The sole purpose behind the existence of any public authority in India is to serve the public interest, not undermine it.


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[1] As the time limit is not a subject for this consultation, we will not go into a detailed discussion on the issue in this submission.
[2] As the manner of making a decision of rejection of a request is not a subject for this consultation we will not go into a detailed discussion on this issue in this submission.
[3] This sub-section will be taken up for detailed comment after completing the description of the scheme of section 7.
[4] As the procedure for ‘rejection of information requests’ is not a subject for this consultation we will not go into a detailed discussion on this issue in this submission.
[5] As the last two parts in this list are not the subject of this consultation we will not go into a detailed discussion on this issue in this submission.
[6] As provisions other than those relating to fees are not the subject of this consultation we will not go into a detailed discussion on this issue in this submission.
[7] The first amendment incorporated in the RTI-RFCR increased the time unit chargeable from fifteen minutes to one hour.